Mandatory Sentences Don't Work

September 28, 1991

Although there is little evidence that mandatory minimum jail terms are reducing crime, the Bush administration and some members of Congress want to expand the program. They want to establish high mandatory minimum sentences for a wide array of federal crimes. A more promising approach would be to rely on the wider use of existing federal guidelines.

The guidelines, which spell out the range of permitted sentencing, were passed by Congress in 1987 to impose reasonable uniformity on the federal courts. Before that time, judges had far too much freedom in choosing the length of sentence and conditions of parole.

Now, crimes carry specific sentences. The guidelines give judges a leeway of 25 percent in the length of sentences. Parole has been largely eliminated, although prisoners can earn a 15-percent reduction in time served for good behavior. The message is that crime has a specific price.

But many hardliners remain unsatisfied. They think an expansion of mandatory minimums would send the strongest message: For example, at least five years for the first-time possession of more than five grams of crack cocaine; 10 years for being a deckhand on a boat that carries illegal drugs. Crimes involving drugs, firearms and child pornography have been the main focus of the mandatory minimum movement.

Yet the U. S. Sentencing Commission has found that mandatory minimums are not deterring crime or stopping sentencing disparity. Some specifics: In 35 percent of the cases that would have drawn a mandatory minimum sentence, prosecutors let defendants plead guilty to a lesser offense. Prosecutors have the discretionary powers the judges once had -- and were criticized for.

Steep sentencing "cliffs" separate minor differences in offenses; someone caught with 5.01 grams of crack must be jailed for five years while someone found with only 5.0 grams cannot be sentenced to more than one year.

Peripheral players in drug schemes face the same sentence as ringleaders, eliminating the consideration of intent, mitigating circumstances and proportionality. Criminal kingpins can cut their mandatory time by turning in underlings or aiding the prosecutors, which corrupts the concept of uniformity in sentencing.

The federal criminal courts are busier than ever because of the mandatory minimums. Whereas 87 percent of all convicted defendants plead guilty, only 70 percent of those facing mandatory minimum sentencing do so because they have little to lose by a trial.

The Bush administration and Congress should heed the advice of the sentencing commission by making the existing sentencing guidelines even more flexible and giving them a chance to work.